Ride the Lightning

SELF-INFLICTED WOUNDS: FAILURE TO AUTHENTICATE ESI (AND THE TRIUMPH OF SPIDERMAN 3)

August 15, 2007

By now, virtually everyone has heard about Lorraine v. Markel, the landmark case regarding the admissibility of electronic evidence decided in a Maryland federal court in May of 2007. It is a fearsome opinion, 101 pages in length. I read the digest of the case and printed it out with every intention of reading it. Ignored, though resting elegantly on my leather sofa, it glared at me balefully for weeks. Finally, knowing that I had a five hour plane ride to the ABA annual meeting in San Francisco, I packed the opinion to read on the plane. I started off well enough as the plane gained altitude, but with apologies to Judge Grimm, I have to confess that I fell sound asleep on Page 15. I know it was on that page because I awoke to find that page and my left hand covered with blue highlighter marks. I had been awakened by my husband, who wanted to let me know that the movies were coming on. Now I had a choice between watching Spiderman 3 or finishing the opinion. What can I say? Spidey won out. So much for my devotion to things intellectual.

Once the movie was over, I was well and truly without any further excuses from duty, so I buckled down and got through the whole opinion. Having been frequently asked by lawyers if they should really spend the time to read this opinion, my answer is a resounding yes. Judge Grimm does an exhaustive (or in my case, exhausting) job at examining all the issues regarding the authentication and admissibility of ESI. In a nice turn of phrase, Judge Grimm calls the failure to authenticate ESI a “self inflicted wound,” and one that judges see all the time. I have no doubt that some attorneys will be surprised by what they read – there are more means of authentication than you might imagine, whether we’re talking about chat room text, e-mails or website content. It is beyond the scope of a blog post to go through this opinion meaningfully, but rest assured, if you have questions regarding the authentication of ESI, this is the opinion to read. The decision may be found at http://www.mdd.uscourts.gov/Opinions152/Opinions/Lorraine%20v.%20Markel%20-%20ESIADMISSIBILITY%20OPINION.pdf

E-mail:   Phone: 703-359-0700